Smith-Mundt Modernization Act of 2012 introduced in the House

Last week, Representatives Mac Thornberry (R-TX) and Adam Smith (D-WA) introduced a bill to amend the United States Information and Educational Exchange Act of 1948 to “authorize the domestic dissemination of information and material about the United States intended primarily for foreign audiences, and for other purposes.” The bill, H.R.5736 — Smith-Mundt Modernization Act of 2012 (Introduced in House – IH), removes the prohibition on public diplomacy material from being available to people within the United States and thus eliminates an artificial handicap to U.S. global engagement while creating domestic awareness of international affairs and oversight and accountability of the same. This bill also specifies Smith-Mundt only applies to the Department of State and the Broadcasting Board of Governors, eliminating an ambiguity creatively imagined sometime over the three decades.

The Modernization Act was approved last night to be included in the House’s version of the National Defense Authorization Act now being debated. The Rules Committee approved the inclusion last night, a move that was not intended to challenge jurisdictional issues. Adding this to the NDAA, which is sure to pass and soon, rather than as a stand-alone foreign affairs bill, reflects the House’s imperative to change the Smith-Mundt Act to better enable and support America’s national security and foreign policy writ large. A State Department authorization bill, which this would normally be included with, has not passed the Congress in years.

Below are highlights of the bill:

Specifies Smith-Mundt applies only to the State Department and the BBG, in doing doing so extends the Act over the entire department instead of just the public diplomacy side of the Office of the Under Secretary for Public Diplomacy and Public Affairs.

The bill applies to material produced after the bill is passed into law. The existing regime for making content available remains intact to limit the burden on the agencies.

The bill emphasizes, in legislative language, existing law (that remain untouched since 1948) requiring the State Department and the Broadcasting Board of Governors to maximize the use of private resources and to not have a monopoly (22 USC 1462 and 22 USC 1437, respectively), the real “anti-propaganda” protections in the law.

Applying the Law to State and BBG

Specifying the Smith-Mundt Act only applies to the BBG and the State Department counters a myth that has grown over recent decades that the law applies to the whole of government. Even a 2006 Defense Department review of Smith-Mundt found that while the law did not apply to Defense, the legal advice from a lawyer was that in the absence of a clear instruction (i.e. law) from Congress, the Defense Department should consider the law as applicable to its activities. This is equal to Defense making law but more accurately reflects an inaccurate reading of the law, its language and the past intent. (The legislatively minded will note Smith-Mundt is found in Title 22 of U.S. Code, covering State Department activities, and not Title 10 of U.S. Code covers Defense Department activities.)

This particular myth was generally part of the false characterization of the Smith-Mundt Act as an anti-propaganda law. This label likely stems from 1985 when Senator Zorinsky labeled USIA material as propaganda if it were to be available inside the U.S. An amendment by Zorinsky led a federal court to block Freedom of Information Act requests on USIA material for a time (during which time the Congress removed the propaganda label from foreign government material disseminated within the U.S.).

Removing this restriction will allow departments to engage globally. There is and remains “anti-propaganda” language in (seemingly) all appropriation bills, and many authorization bills, passed by the Congress.

The Modernization Act extends coverage of the Smith-Mundt Act over the entire Department of State. Previously it arguably applied only to the public diplomacy side of the Office of the Under Secretary of State of Public Diplomacy and Public Affairs. Other bureaus in State restricted their engagement according to their own individual view of the law.

Removing the restriction of domestic access to content — the law never specified someone in the U.S. could not use the material, just that it should not be available to a person inside the U.S. — eliminates virtual restraints on global engagement. Legally, the American public is not supposed to know what Michelle Kwon, for example, does when she is traveling abroad on behalf of the State Department as that is a public diplomacy trip. The concern of violating Smith-Mundt permeates not just State, even coming up in a conversation on whether to put an American on a foreign government radio program, but other departments as well.

The result will be greater awareness of and oversight over what is said and done with taxpayer money. This was a strong recommendation of the 1967 Advisory Commission on Information, predecessor to the recently closed Advisory Commission on Public Diplomacy:

The American taxpayer should no longer be prohibited from seeing and studying the product a government agency produces with public funds for overseas audiences. Students in schools and colleges all over this country who are interested in government, foreign affairs and international relations should not be denied access to what the U.S. government is saying about itself and the rest of the world.

Not Retroactive

To prevent a potentially significant burden on State and BBG to make all past material immediately available, the Modernization Act applies only to material produced after it becomes law and restates the 12-yr rule for all past material.

This rule of making USIA, and not State and BBG, material available after 12-years was intended to prevent access to the material in slower times as scholarly research wasn’t down for many years after an event. The Modernization Act should revert the availability of past material to the original language: a reasonable time.

Maximize the Use of Private Resources

The Modernization Act emphasizes the original “anti-propaganda” sections of the Smith-Mundt Act. These were put in place to “remove the stigma of propaganda” and as a response to the contemporary Freedom of Information movement that both caused Smith-Mundt and was part of the resistance to Smith-Mundt in 1943 through 1947. (Shameless plug: details on this in my forthcoming book on Smith-Mundt.)

The section “Policies Governing Information Activities” (22 USC 1462, or Section 502 in the original legislation) is not only intended to prevent government propaganda by ensuring other voices are heard, but it was also intended to be a “sunset” clause of international information activities:

In authorizing international information activities under this chapter, it is the sense of the Congress (1) that the Secretary shall reduce such Government information activities whenever corresponding private information dissemination is found to be adequate; …

22 USC 1462 should be read as a guiding principle today: the information provided by the Government should not be otherwise available to the target audience. In other words, material produced by State and the BBG should be exceptional.

This bill is a bipartisan effort between Republicans (Thornberry) and Democrats (Smith) at the front. This mirrors the passage of the original Act. In December 1945, the House Foreign Affairs Committee referred the Bloom Bill to the floor. Named after the chair of the Foreign Affairs Committee, a Democrat, it gained bipartisan support in a Democratic House where opposition tended to fall along divisions of geography and cosmopolitanism. It passed the House but failed in the Senate, blocked by the Republican Senator Taft, a proponent of a contemporary “Freedom of Information” movement, who believed in freedom of information and felt Government should stay out of the information business. The bill thus died in the 79th Congress.

The bill was picked up in the 80th Congress by the Republicans Congressman Karl Mundt and Senator Alexander Smith. The 80th Congress, with both chambers under Republican control fought President Truman on nearly everything and was nicknamed the “Do Nothing Congress.” Nevertheless, it recognized the importance of the U.S. becoming actively engaged in the global struggle for minds and wills and it passed the Smith-Mundt Act with substantial bipartisan support, including Taft’s. The Congress recognized the increasing importance of information and public opinion. On January 7, 1948, the Senate Foreign Relations Committee recommended passing the legislation, stating that propaganda campaigns against the U.S. called for “urgent, forthright, and dynamic measures to disseminate truth.” The committee report said:

The enactment of the bill is essential if we are to have mutual understanding between the people of the United States and the people of other nations which will serve a fair and lasting foundation for world peace. Today that peace is endangered by the weapons of false propaganda and misinformation and the inability on the part of the United States to deal adequately with those weapons.

Truth can be a power weapon on behalf of peace. It is the firm belief of the Committee that HR 3342 [the Smith-Mundt Bill], with all the safeguards included in the bill, will constitute an important step in the right direction toward the adequate dissemination of the truth about America; our ideals, and our people

The Smith-Mundt Modernization Act of 2012 should have similar bipartisan support at a time when public opinion has an even greater role than over six decades ago.

This update to the Smith-Mundt Act of 1948 removes restraints imposed by Senators in 1972 and 1985 that reflect the changing nature of international politics where public opinion mattered relatively little. It was zero-sum bipolar politics with the substantial negotiations done behind closed doors rather than in the minds of people. Smith-Mundt was created and passed in a time when the struggle for minds and wills of people mattered. We are again in such an era.

What are you thoughts on the proposed changes to the Smith-Mundt Act? Comment below or write a guest post.

See also:

Public Law 80-402 – the United States Information and Educational Exchange Act of 1948, as signed into law on January 27, 1948. (H.R. 3342)

8 Replies to “Smith-Mundt Modernization Act of 2012 introduced in the House”

Quite aside from the potentially positive aspects of this action, there are perhaps some counterintuitive negative aspects. Congress is generally less interested in being seen to oversee USG activities that are unlikely to come to the attention of their constituents. In times past, there were often highly valuable foreign contacts and interactions which the PD field officers of the day were able to undertake in a timely and effective manner without a great deal of worry about having to deal with any legislative second guessing. An initiative was often “OK,” so long as it was done with the understanding of the Ambassador or another responsible designated hitter and could be carried out within existing local budgetary constraints. Any such future initiative which requires any greater degree of routine consultation with Washington, and particularly anything that requires more than the most nominal Congressional awareness or approval, is at great risk of bureaucratic suffocation. This comment perhaps overstates the views I always held as a field officer, but does, I believe, reflect persistent reality, no matter how future PD programs are publicized, organized, supervised, or funded. There are no single-edged swords in these struggles. The necessary function will survive, and perhaps even prosper. Over the long haul, the important action is in the field, various predictable domestic pretensions notwithstanding.

Nice to see some government officials taking the lead against this act of tyranny. Hopefully, if more of them follow suit and unite against NDAA, this unconstitutional piece of legislation will be struck down forever!

Accurate, immediate attribution will be just the first step. At a time when information activities are routinely mismanaged, I can see a mess unraveling.
Get information operations to the point where practitioners can create reasonable goals and set worthwhile measures effectiveness, then unleash the creative campaigns for Americans to judge. You know they will judge them.

I support State Department and BBG being able to untie their hands, especially with the added responsibility that comes with the expectation of domestic awareness of their activities. Perhaps some Americans would be quite interested in diplomatic efforts and be better judges of governmental work with more access to the products being produced. The awareness could become a net benefit to the diplomatic efforts of State.

But what I do not like is the potential for targeted messages to confuse or misinform Americans. Knowing that State needs to coordinate with defense and warmaking activities, and that those efforts are under scrutiny, I’d like to learn how State and BBG can prove their credibility with taxpayers through information programs.

Allowing any political party or the DOD to provide Misinformation (I/O)Propaganda will sink us into the same pot as the communist regimes of Mao, Stalin, and Lenin, and the Socialist/Marxist regime of Hitler. Repealing this only brings us another step closer to a socialist/communist society that BHO is desperately trying to create in America today. This law should apply to the US government as a whole, not just State. When you combine this aboilshment of anti-propaganda with the Executive Order — National Defense Resources Preparedness act signed in March, you have to really wonder what this President is doing or what is motives are in a second term.

IzDaMan -The Smith-Mundt Act does not currently, nor has it ever, applied to the Defense Department information activities. Those that have claimed it does, or assumed it does, were, to be blunt, wrong. There is nothing in the language of the law and nothing in its place in the US Code to indicate it applies to anything more than a *part* of the State Department and the Broadcasting Board of Governors. In other words, it does not nor has it ever applied to the entire State Department or any other Department of the Executive Branch. If it applied to the whole Government, should the Government be prevented from speaking on the Sunday talk show circuit?

There is other legislation that applies to activities intended to influence public opinion in the United States. There always has and this legislation does not change those restrictions and in fact, those restrictions are repeated in this modernizing legislation, at the very beginning no less: “No funds authorized to be appropriated to the Department of State or the Broadcasting Board of Governors shall be used to influence public opinion in the United States.”

Let me ask this question: do you want transparency over what is said in America’s name and with tax dollars?

While I support certain modifications to the old Smith-Mundt Act, it appears that the changes being considered do not offer specific enough restrictions on what government bureaucrats can do with this new law.
Those of us who have seen the Broadcasting Board of Governors executives in action over the years fear that they will take advantage of the vague wording of the law to divert resources from critical radio and television broadcasts overseas — as they have already tried (China, Tibet) and in some cases succeeded (Russia, China to some degree by eliminating some VOA Mandarin live newscasts and replacing live programs with repeats) — and to use these scarce resources on domestic dissemination of broadcasts and news, but mostly on themselves and their own bureaucratic activities, including possible domestic marketing, advertising, audience research, numerous contractors but all of it to no good purpose. BBG executives would like nothing better than to have an NPR-like network in the United States. The law should clearly state that they cannot favor one domestic broadcaster over another, place any restrictions on the use of the programs, enter into agreements with domestic stations, actively market the programs, or charge unreasonable fees for making the programs available.

I would go even further than the proposed legislation envisions. All BBG programs — not just Voice of America programs but also Radio Free Europe/Radio Liberty (RFE/RL), Radio Free Asia (RFA), and Middle East Broadcasting Networks (MBN) – Radio Sawa and Alhurra TV — should all be placed in the public domain for anyone in the United States to use them. But the new law needs to place some restrictions and create specific rules for government bureaucrats to abide by because one cannot trust them to restrain themselves. I don’t think the current group of BBG executives is capable of doing great harm to Americans with sinister news programs, but future government bureaucrats may be. They can certainly waste taxpayers’ money and cut critical overseas broadcasts if given more unrestricted powers. Some vigilance is necessary.” Ted Lipien, Co-founder and Director of the Committee for U.S. International Broadcasting (CUSIB).